IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 362 of 2002()
1. KAMALAKANTHAN, S/O.KARUNAKARAN,
... Petitioner
Vs
1. THE EXCISE INSPECTOR, KUTTANAD RANGE.
... Respondent
2. STATE, REP. BY PUBLIC PROSECUTOR,
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :20/11/2009
O R D E R
P.Q.BARKATH ALI, J.
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Crl.R.P.No.362 OF 2002
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Dated this the 20th day of November, 2009
ORDER
Revision petitioner is the accused in C.C.No.141/1997 of Judicial
First Class Magistrate Court, Ramankary and appellant in Crl.Appeal
No.266/1998 of Additional Sessions Court (Fast Track), Alappuzha.
He was convicted under Section 55(a) of Abkari Act and sentenced to
undergo rigorous imprisonment for one year and to pay a fine of
Rs. 25,000/-, in default, to undergo simple imprisonment for three
months which is confirmed in appeal. The accused has now come up in
revision challenging his conviction and sentence.
2. The case of the prosecution as shaped in evidence before
the trial court was that on March 23, 1997 at about 6 p.m. he was found
to be carrying 1 = litres of illicit arrack in a jerry can at Kumarankary
and that thereby committed the offence punishable under Section 55(a)
and 58 of Abkari Act.
3. The accused on appearance before the trial court pleaded
not guilty to a charge under Section 55(a) and 58 of Abkari Act.
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PWs 1 to 3 were examined and Exts.P1 to P4 and MO1 were marked
on the side of the prosecution. When questioned under Section 313 of
Cr.P.C by the trial court, the accused denied the entire incident and
submitted that one Gopalakrishnan and his labourers were drinking
liquor in his paddy field, that on seeing the excise party, they ran away
leaving the jerry can containing the liquor and that he was falsely
implicated in this case due to previous enmity. No defence evidence
was adduced.
4. The trial court on an appreciation of evidence found the
revision petitioner guilty of the offence punishable under Section 55(a)
of Abkari Act, convicted him thereunder and sentenced him as
aforesaid. The trial court has found that though accused was charged
under Section 55(a) and 58 of Abkari Act, as the offence is only
possession of illicit arrack, he was convicted under Section 55(a) and
not under Section 58. Now the accused has come up in revision
challenging his conviction and sentence.
5. Heard the learned counsel for the revision petitioner and the
learned Public Prosecutor appearing for the State.
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6. The following points arise for consideration :
1) Whether the conviction of the
revision petitioner under Section 55(a) of
Abkari Act rendered by the trial court which is
confirmed in appeal can be sustained ?
2) Whether the sentence imposed is
excessive or unduly harsh ?
Point No.1
7. PWs 1 to 3 were examined and Exts.P1 to P4 and MO1
were marked on the side of the prosecution to prove the guilt of the
accused. PW1 was the then Excise Inspector of Kuttanad Range at the
relevant time. PW2 was the then Preventive Officer. PW3 was the
then Excise Inspector who detected the offence. PW2 and PW3 gave a
consistent version regarding the seizure of contraband articles from the
accused. No serious discrepancies or contradictions were pointed out
in their evidence. Further it was not proved that they have any enmity
towards the accused to foist a false case against him. Ext.P3 mahazar
was prepared by PW3 . Therefore, in my view the trial court as well as
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the lower appellate court is perfectly justified in believing the evidence
of PWs 2 and 3 regarding the search and seizure of contraband articles
from the accused. Ext.P2 the report of the Chemical Analyst shows
that the sample was illicit arrack.
8. The main argument advanced by the counsel for the
revision petitioner was that there was considerable delay in producing
the material objects before the court and that there is no evidence to
show that the sample analysed by chemical analyst was the sample
taken from the accused. I am unable to agree. Merely there is some
delay in producing the material objects in court is not a ground to doubt
the case of the prosecution. The sample was taken from the court and
sent to chemical analyst. There was no evidence to show that material
object was tampered with or the same was substituted. Mere delay in
producing the material objects in court is not a ground to reject the
report of the chemical analyst.
9. Learned counsel for the revision petitioner arguing the
revision submitted that no opportunity was given to accused to cross
examine PW1, the investigating officer which caused much prejudice
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to the accused . There is no substance in the above contention. No
steps were taken by the accused to recall PW1 for cross examination.
Therefore, I am not inclined to accept the above contention of accused.
For all these reasons, I am inclined to hold that the trial court as well as
the lower appellate court is perfectly justified in accepting the evidence
adduced on the side of the prosecution and holding that the prosecution
has succeeded in proving that accused was found in possession of 1 =
litres of illicit arrack as alleged by the prosecution.
Point No.2
10. The next question for consideration is whether the charge
under Section 55(a) will lie against the accused. The accused was
found to be in possession of 1 = litres of illicit arrack. A Single Bench
of this court in Sachidanandan v. State of Kerala ( 2006 KHC 1932)
has held that Section 55(a) of Abkari Act applies only when a person
is in possession of illicit liquor while importing, exporting or
transporting it. When there is mere possession of illicit liquor, Section
58 would be applicable. Therefore the conviction of the revision
petitioner under Section 55(a) cannot be sustained and is hereby set
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aside. Instead, he is convicted under Section 58 of Abkari Act.
Point No.2
11. As regards the sentence, the trial court imposed a sentence
of rigorous imprisonment for one year and to pay a fine of
Rs. 25,000/-. I have set aside the conviction under Section 55(a) and
convicted the accused under Section 58 of Abkari Act. The incident
occurred on March 23, 1996. During that period, punishment
prescribed under Section 58 of Abkari Act was fine which may extend
to Rs. 15,000/- or imprisonment which may extend to two years. As
the incident is of the year 1997 and the quantity of illicit arrack found
in possession of the accused is only 1 = litres, I feel that a sentence of
imprisonment till the rising of court and a fine of Rs. 15,000/- would
meet the ends of justice.
In the result, the revision petition is allowed in part. Conviction
of the revision petitioner under Section 55(a) of Abkari Act is set aside
and he is convicted under Section 58 of Abkari Act. Sentence is
modified to the effect that he is sentenced to undergo imprisonment till
the rising of court and to pay a fine of Rs. 15,000/-, in default, to
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undergo simple imprisonment for three months. The revision petitioner
shall surrender before the trial court on or before 15-12-2009 to receive
the sentence. Two month’s time is granted for payment of fine. If any
portion of the fine amount is deposited by the revision petitioner before
the trial court, the same shall be adjusted towards the fine amount. His
bail bonds are cancelled.
P.Q.BARKATH ALI
JUDGE
sv.
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